Lee v. State

Decision Date29 December 1931
Docket Number105.
Citation157 A. 723,161 Md. 430
PartiesLEE v. STATE.
CourtMaryland Court of Appeals

Appeal from Circuit Court, Worcester County; Jno. R. Pattison, Chief Judge, and Joseph L. Bailey and Robt. F. Duer, Associate Judges.

Proceeding by Euel Lee, alias Orphan Jones, indicted on charges of murder, by petition as upon a writ of error, to reverse the Trial Court's selection of the place for trial upon removal of the cause.

Proceeding dismissed.

ADKINS SLOAN, DIGGES, and PARKE, JJ., dissenting in part.

Argued before BOND, C.J., and URNER, ADKINS, OFFUTT, DIGGES, PARKE and SLOAN, JJ.

Bernard Ades, of Baltimore, Md., for appellant.

John H Skeen and Reuben Oppenheimer, both of Baltimore, amici curiæ.

Wm Preston Lane, Jr., Atty. Gen., and Willis R. Jones, Dep. Atty. Gen. (William L. Marbury, Jr., of Baltimore, on the brief), for the State.

BOND C.J.

The appellant, or plaintiff in error, indicted on charges of murder in Worcester county, exercised his constitutional right to have the cause upon his indictment removed from the circuit court of that county for trial (Constitution of Maryland, art. 4, § 8). and now, before any further proceedings have been had below, he seeks by a petition as upon a writ of error, under the Code, article 5, § 4, a reversal by this court of the trial court's selection of the place for trial. But action upon that question at this stage of the cause seems clearly barred by the rule that this court cannot take up cases from the trial courts piecemeal. Its jurisdiction is limited to the reviewing of final actions of the trial court. And the selection of a place for trial in a court's discretion is not such a final action, and therefore no decision can be had here upon the selection until after trial has been held and final judgment rendered. This is true in a proceeding as upon a writ of error as well as in the ordinary appeal. League v. State, 36 Md. 257; Avirett v. State, 76 Md. 510, 514, 25 A. 676, 987. All parties agree that selection of the forum is a matter to be disposed of in the discretion of the removing court, and this court can ordinarily take no part in the decision at any time. Weiskittle v. State, to Use of Samuel, 58 Md. 155; Kimball v. Harman, 34 Md. 401, 406. Indeed, this is the first time during the history of the court that it has definitely been asked to review the selection made by a trial court upon removal of a case. The question presented in the case of Atlantic & George's Creek Co. v. Maryland Coal Co., 64 Md. 302, 1 A. 878, 880, cited in argument on this point, was rather the question of the right of a trial court to change its designation once made, of the place for trial, before the record had been transmitted to the jurisdiction first selected. And it was held that so long as the record was still in the removing court, during the one term of court, at least, such an order could be changed. The opinion of this court in the case added that "No matter from what source the court gets information to aid its discretion, when exercised, it must be regarded as properly done in the interest of justice. * * * The whole matter was the subject of discretion and unreviewable." But in that remark the court was not deciding the question now submitted. In many cases it has been decided that a refusal to grant a removal when the Constitution gives an absolute right of removal, as it does in all cases on charges of capital crimes, amounts to a final judgment on the constitutional right, and is immediately open to review in this court on the record. Smith v. State, 44 Md. 530; McMillan v. State, 68 Md. 307, 12 A. 8. But only decisions on claims of such absolute constitutional rights have been held reviewable at once, and there has been a decision on the precise point that orders within the discretion of the lower courts are, on the contrary, not final orders within the meaning of the rules governing the jurisdiction of this court, and are therefore not immediately reviewable, if reviewable at all. Tidewater Portland Cement Co. v. State, 122 Md. 96, 89 A. 327. And see Mayor, etc., of City of Annapolis v. Howard, 80 Md. 244, 30 A. 910. It is true that in the earlier case of Downs v. State, 111 Md. 241, 73 A. 893, 18 Ann. Cas. 786, the court had before it an appeal taken immediately from a discretionary order on a suggestion for removal, and, after having found the discretion not abused, affirmed the order instead of dismissing the appeal. The question of jurisdiction to entertain the appeal appears not to have been raised, and of course as the court did not find any abuse of the lower court's discretion, the distinction between dismissing the appeal and affirming the order was without importance in the case. But we think it must be assumed that if the distinction had been noticed the court would have been in agreement with the disposition made of the later appeal, because the general principles governing appellate proceedings require it, and the consequences of a contrary practice would have been regarded as prohibitive. If on a question left to the court's discretion, upon a suggestion for removal, a prisoner is permitted to take an immediate appeal, then proceedings in every criminal case, great or small, may be stopped and delayed while the accused prosecutes an appeal on this preliminary matter of venue. And this would add just so much to the resources of those who might find vexatious delays advantageous, and would multiply appeals in criminal cases, often when acquittals, in the end, would render them profitless. The rule followed in the later case of the Tidewater Portland Cement Co. v. State, supra, is the correct rule, and must be followed in this case. The accused has been allowed his constitutional right of removal from the court of origin, and therefore has no complaint of a denial of that right, which has been held immediately reviewable; and he seeks a review only of the subsequent discretionary selection of a new court for the case, and on that selection no appeal or proceeding as upon writ of error now lies. The proceeding upon the assignment of error must be dismissed.

While this ruling disposes of the present proceeding in this court, we shall, however, follow in the course adopted in several previous cases and express an opinion on the questions sought to be reviewed, because if the court entertains now views which might later cause a reversal of a conviction of this prisoner and necessitate a second trial, it seems desirable that those views should be expressed while the case is before the court. It cannot be the practice to do this ordinarily, but we agree that the course may well be followed in this case.

A family of four were killed, a farmer, his wife, and two daughters, and the act has had the natural effect of arousing high popular excitement and anger in the county; and, after the petitioner had been arrested, lawless elements in the population attempted more than once to seize him and wreak vengeance upon him, and he was taken by the public authorities to the jail in Baltimore city for security, and, except for a trip back to Worcester county for arraignment, has ever since been lodged in the Baltimore city jail. The circuit court appointed Mr. Leonard F. Wailes, one of the leading members of the bar of the state, to act as counsel for the accused, and Mr. Wailes had taken the first steps for the defense, when Mr. Bernard Ades, described in some of the papers filed by him as having been retained for the accused by an organization known as the International Labor Defense, appeared and claimed the right to act as the sole representative of the accused by virtue of a written authorization which the accused had signed; and this fact has added to the anger and antagonism of the population because of a belief that Mr. Ades had been foisted upon the accused as counsel by an organization the objects and activities of which they believed were not confined to aiding prisoners, but included ulterior and principal objects and activities offensive to the community. And it is recited, among the grounds for the further relief sought on behalf of the accused, that part of public excitement and anger is directed against the International Labor Defense, its agents, and the attorney employed by it. Any question whether Mr. Ades was or was not improperly foisted upon the accused, however, is one which this court, concurring with the lower court, takes as settled for the purposes of the case, and the employment is to be considered here only in so far as it may be a source of irritation endangering a fair and impartial trial of the accused on the charges against him. The popular feeling aroused from all causes together, it is alleged by Mr. Ades, extends throughout all the counties of the Eastern Shore of the state, including Dorchester county, to which the cause has been ordered removed.

The record does not present the question argued as fully as it has been presented in argument. Counsel for the accused has referred to particular outbreaks and manifestations to show the popular state of mind which would render a fair and impartial trial in the region unlikely, as suggested by him; but not all the particular facts cited could be regarded as having been within the knowledge of the court below or regularly brought to its attention. The facts and conditions alleged are substantially these:

The homicide was committed on October 11, 1931, and the accused a colored man, was arrested on the next day. In one of the petitions for removal, it is alleged that upon arrest he was for sixteen hours subjected to maltreatment by officials of Worcester county, and kept without food or drink; that on October 13 a mob of citizens of Worcester county prepared to lynch the prisoner,...

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